Titania and Child Support Registrar (Child support)

[2023] AATA 2162

Titania and Child Support Registrar (Child support) [2023] AATA 2162 (14 June 2023)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2023/BC026101

APPLICANT:  Ms Titania

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                14 June 2023

APPLICATION:

An extension application made on 15 May 2023 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 5 April 2023 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no satisfactory explanation for the delay – little merit – extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988. 

STATEMENT OF REASONS

1. Ms Titania and Mr Titania are the parents of [Child 1] and [Child 2]. There has been a child support assessment in place since 12 February 2020. Both children are recorded by Services Australia (Child Support) as being in Ms Titania’s 100% care and Mr Titania’s 0% care. Mr Titania is the parent liable to pay child support. From 3 August 2020 Child Support has collected child support payments from Mr Titania.

2. On 17 January 2023 Mr Titania lodged an income estimation with Child Support of $136,353 (annualised) for the period 17 January 2023 to 30 June 2023. This was accepted by Child Support on that date.

3. On 9 February 2023 Ms Titania lodged an objection to the decision by Child Support to accept Mr Titania’s income estimation as $136,353 to be applied to the administrative assessment of child support from 17 January 2023. On 5 April 2023 an objections officer disallowed Ms Titania’s objection.

4. Ms Titania lodged an application for review with the Administrative Appeals Tribunal (the tribunal) on 15 May 2023. As the request for a review of this decision was not lodged with the tribunal within 28 days of the objections officer’s decision, an application for an extension of time was also lodged. The matter was heard on the papers. The tribunal had regard to the statement and documents (pages 1–106) supplied by Child Support under subsection 93(2) of the Child Support (Registration and Collection) Act 1988 (the Act) and the reasons for review outlined by Ms Titania in her extension of time application.

5. The issue to be considered is whether Ms Titania should be granted an extension of time to lodge an application for review of the Registrar’s decision.

LAW AND CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in section 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Subsection 29(2) of the AAT Act requires that a person must lodge a review request with this tribunal within 28 days after a notice of the decision of the Registrar is given to them.

2. Where the period for lodgement has ended, the person may send the application to the tribunal along with a request that the review be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 91 of the Act). This is commonly referred to as an extension of time request. Section 92 of the Act then provides that the tribunal must consider the application for an extension of time, and grant or refuse that application in writing.

3. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25, the High Court, in dealing with an extension of time case and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which, in the circumstances of an individual case, may indicate that justice is served by the general rule being overruled.

4. In making this decision, I considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments). In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time. The Federal Court identified six factors to take into account when deciding whether to grant an extension of time.

5. In Brown v Commissioner of Taxation [1999] FCA 563, Hill J reviewed the principles set out in the Hunter Valley Developments case in the context of a person seeking an extension of time to lodge an objection against an assessment of income tax. In that case, Hill J commented that Wilcox J in Hunter Valley Developments never suggested he was laying down a series of principles to be applied in every case, and that the factors would serve as a guide and were not exhaustive. Further he commented that “Too slavish an adherence to them should, in my view, be avoided.” Hill J then sought to reshape the factors to be considered in the context of objecting to a tax assessment.

6. The Administrative Appeals Tribunal, differently constituted, applied the principles set out in Hunter Valley Developments in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 (Mulheron). The authorities, Hunter Valley Developments and Mulheron, establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors including:

   ·      the reasons for the delay and whether the applicant rested on their rights;

   ·      the merits of the substantive application;

   ·      any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   ·      wider prejudice to the general public;

   ·      fairness in granting an extension of time as between the applicant and other persons in a similar position; and

   ·      whether it is proper to grant the extension of time.

7. Ms Titania provided the reasons for her extension of time application as follows: Ms Titania writes that she did not receive notification of the objections officer’s decision until she received a letter about the change in the child support liability to be paid by Mr Titania on 18 April 2023 and this was the first time she was notified of the decision as it resulted in a reduction of child support paid by Mr Titania. This letter updated Mr Titania’s income estimation from $136,353 for the period 17 January 2023 to 30 June 2023 to $187,714 for the period 18 April 2023 to 30 June 2023. This resulted in a difference of about $278.86 a month between the period of 17 January 2023 to 17 April 2023 once the new income estimation was updated by Child Support.

8. Ms Titania writes that she did not receive the notice of the objections officer’s decision in her myGov inbox. The tribunal notes that Ms Titania was notified of the objections officer’s decision electronically on 5 April 2023. The tribunal is satisfied that Ms Titania was advised of her right to seek review with the tribunal in accordance with subsection 87(3) of the Act. Ms Titania was 18 days late in her application to the tribunal.

9. The tribunal is satisfied Ms Titania has rested on her rights and has not provided an acceptable reason for the delay in her application to the tribunal.

10. In terms of the merits of Ms Titania’s application for review, she writes:[1]

    Over the Christmas period Mr Titania had approximately one month holiday, which I believe would be unpaid time off. If he was to supply Child Support with 3 months pay slips that included no pay for that month, that would make the exact reduction he is trying to advise of now. However, that would just be a period of time off work.

    [1] Page 40 of the Child Support papers.

11. Mr Titania provided payslips for the period 25 December 2022 to 25 February 2022.[2] His YTD income recorded on his payslip for the period 19 February 2022 to 25 February 2022 was $59,219. In any event if Mr Titania has underestimated his income for the relevant period once he lodges his tax return for the financial year ending 30 June 2023, if income the child support assessment is based on is lower than his actual income for the year then he will incur a debt. Therefore, the tribunal is satisfied that there exists little merit in Ms Titania’s application for review.

    [2] Pages 53–61 of the Child Support papers.

12. The tribunal considered whether there would be prejudice to the other party because of the delay in lodging an application for review and the time that has passed since the original decision was made. The tribunal is satisfied that the delay in Ms Titania’s application to the tribunal and the time that has passed means prejudice to the other party exists.

13. The tribunal also considered whether extending the period to apply for review in the present circumstances would prejudice community expectations in relation to the finality and certainty of administrative decision making. It is the tribunal’s view that if the application for an extension of time to seek review were granted in this matter this would create prejudice to the wider public.

14. Ms Titania has requested a review out of time. She has not provided an adequate explanation for the delay. The tribunal is of the view that there is little to no merit in reviewing the decision and it is not fair and equitable to do so. In the circumstances, the tribunal has decided to refuse to grant an extension of time to Ms Titania.